Citation Nr: 21003504 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-36 425 DATE: January 21, 2021 ORDER Entitlement to service connection for asthma is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Asthma is not shown to be causally or etiologically related to any disease, injury, or incident during a period of active duty, and clear and unmistakable evidence establishes that such disability pre-existed periods of active duty for training (ACDUTRA) in August 1999 and May 2001 and was not aggravated beyond the natural progression therein. 2. For the entire appeal period, the Veteran’s bilateral hearing loss is manifested by no worse than Level II hearing in the right and left ears. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 101(24), 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.304, 3.306. 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to February 1988 and from January 1991 to June 1991 with additional service in the Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2019, the Board remanded the claims on appeal for further development and they now return for further appellate review. 1. Entitlement to service connection for asthma. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1 (d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National of any State. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304 (b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227 ; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him or her, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. In this regard, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id.; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his currently diagnosed asthma is related to his military service. However, he does not claim, and the evidence does not show, that such disability had its onset during, or is otherwise causally or etiologically related to any disease, injury, or incident during his period of active duty from February 1985 to February 1988 or from January 1991 to June 1991. Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). Rather, at his July 2019 Board hearing, the Veteran reported that he had his first asthma attack during physical training while on duty in approximately September 1990. However, the contemporaneous records do not support such a date of onset. In this regard, a March 1991 Report of Medical History reflects the Veteran’s explicit denial of currently or previously experiencing asthma. Furthermore, such reflects that the earliest onset of such disease was in approximately 1995. In this regard, a March 1996 Report of Medical History reflects that the Veteran’s asthma was diagnosed one year previously. While subsequent records reflect various dates of onset, to include 1994, 1996, 1997, and 1998, the Board affords greater probative weight to the contemporaneous Reports of Medical History, which place the onset of the Veteran’s asthma in approximately 1995 during his years of Reserve service. Furthermore, there is no report or indication that he was on ACDUTRA or INADCUTRA at the time of onset and diagnosis. Nonetheless, the Veteran’s service treatment records reflect that, in August 1999, while on ACDUTRA, he was treated for complaints of chest pain and shortness of breath. Treatment records associated with such complaints reflect a diagnosis of pneumonia; however, it was also observed that the Veteran had asthma. Additionally, in May 2001, while on ACDUTRA, he was treated for an asthma attack. Thus, in December 2019, the Board remanded the matter in order to determine whether the Veteran’s pre-existing asthma was aggravated during either period of ACDUTRA. Thereafter, in January 2020, a VA examiner reviewed the entirety of the evidence of record, and found that the Veteran’s asthma, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In this regard, he noted that he agreed that the Veteran’s asthma had its onset in approximately 1995. He further observed that, in August 1999, the Veteran was treated for pneumonia, which later resolved and, in May 2001, he was seen for an upper respiratory infection and asthma, which ultimately required intubation (thus, suggesting that his shortness of breath was severe). The examiner also noted that the Veteran was prescribed Albuterol and Advair for his asthma around March 1997 based on his April 2012 retirement examination and, in July 2006, he was on Advair discus 100/50 b.i.d., which was the starting dose of such medication. Thereafter, in October 2013, it was noted that his Advair was 250/50 and he had not needed Albuterol in over a year as his asthma was well-controlled. He stated that, while there are triggers that exacerbate asthma and precipitate an asthma attack, such as the pneumonia in 1999 and upper respiratory infection in 2001, asthma is a chronic condition. Thus, he indicated that, in order to determine aggravation beyond the natural progression, the overall asthma condition must be shown to have been aggravated, not just trigger. In the instant case, the examiner indicated that the record showed that the Veteran was started on Advair for asthma, was still on the starting dose of such medication in 2006, and, while such dosage was later increased, his asthma was noted to be well-controlled in 2013. Therefore, he concluded that the record did not show that the Veteran’s overall asthma condition was aggravated beyond the natural progression while on ACDUTRA. The Board affords great probative weight to the January 2020 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In contrast, the Board notes that a February 2013 VA examiner noted a diagnosis of asthma as of 1996 and found that such disorder was at least as likely as not incurred in or caused by the asthma and shortness of breath for which the Veteran was treated during military service. Specifically, he indicated that the Veteran’s current asthma condition is a continuation of the symptoms he experienced in service, which extended from 1985 to 2012. However, the Board affords no probative weight to such opinion as it was based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on inaccurate factual premise are not probative). Specifically, the February 2013 VA examiner appears to have assumed that the Veteran was on active duty for the entire period from 1985 to 2012, to include in 1996 when he reported that he was diagnosed with asthma, and during subsequent episodes of treatment. However, as previously discussed, such is not accurate. Thus, his opinion is entitled to no probative weight. The Board also considered the Veteran’s assertions as to the etiology of his asthma; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder, to include by way of aggravation, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his asthma is not competent evidence and, consequently, is afforded no probative weight. Therefore, based on the foregoing, the Board finds that the Veteran’s asthma is not shown to be causally or etiologically related to any disease, injury, or incident during a period of active duty, and clear and unmistakable evidence establishes that such disability pre-existed periods of ACDUTRA in August 1999 and May 2001 and was not aggravated beyond the natural progression therein. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for asthma. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to an initial compensable rating for bilateral hearing loss. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found—a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's service-connected bilateral hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, DC 6100, as of September 6, 2012, the date of service connection. In this regard, ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In this regard, the Veteran underwent a VA audiological examination in February 2013. At such time, he reported that his hearing loss did impact his life; however, he did not specify the degree of such impact. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 10, 40, 90, and 95 in the right ear and were 10, 25, 85, and 90 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 58.75 decibels and the average in the left ear was 52.50 decibels. No exceptional pattern of hearing loss was shown. Word recognition testing revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. These audiometric test results equate to Level II hearing in the right ear and Level I in the left ear, which results in a noncompensable rating. Thereafter, the Veteran was afforded another VA examination in October 2013. At such time, he reported that his bilateral hearing loss did not impact ordinary conditions of daily life, including the ability to work. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 15, 20, 85, and 95 in the right ear and were 10, 20, 85, and 90 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 54 decibels and the average in the left ear was 51 decibels. No exceptional pattern of hearing loss was shown. Word recognition testing revealed speech recognition ability of 94 percent in the right and left ears. These audiometric test results equate to Level I hearing in the right and left ears, which equates to a noncompensable rating. At the July 2019 Board hearing, the Veteran reported that his hearing had worsened since his 2013 VA examinations as he had more difficulty hearing speech at low volumes. Accordingly, the Board remanded the case in December 2019 in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his bilateral hearing loss. Upon VA examination in January 2020, the Veteran reported that his bilateral hearing loss impacted ordinary conditions of daily life, including the ability to work. Specifically, he stated that he has difficulty communicating and hearing car or engine noises, as was required by his work as a mechanic. It was also noted that he had difficulty hearing in the presence of background noise, with soft or high frequency voices, and at a distance. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 20, 40, 95, and 95 in the right ear and were 10, 35, 90, and 100 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 62.50 decibels and the average in the left ear was 58.75 decibels. No exceptional pattern of hearing loss was shown. Word recognition testing revealed speech recognition ability of 100 percent in the right and left ears. These audiometric test results equate to Level II hearing in the right and left ears, which equates to a noncompensable rating. Based on the foregoing, the Board finds that, for the entire appeal period, an initial compensable rating is not warranted for the Veteran's service-connected bilateral hearing loss. The Board notes that the Veteran’s representative has argued that the Veteran’s hearing loss disability presents objective symptoms consistent with a higher evaluation because he has experienced a progression in loss of hearing acuity, which, while true, does not serve as a basis for a higher rating. Further, to the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms capable of lay observation, to include difficulty communicating, hearing in the presence of background noise, with soft or high frequency voices, and at a distance, is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable evaluation are not met. See Lendenmann, supra. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial rating claim adjudicated herein. Doucette, supra. Therefore, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.